State v. Thomas, No. E2003-02090-CCA-R3-CD (TN 3/30/2005)
| Decision Date | 30 March 2005 |
| Docket Number | No. E2003-02090-CCA-R3-CD.,E2003-02090-CCA-R3-CD. |
| Parties | STATE OF TENNESSEE v. HOWARD WALTER THOMAS. |
| Court | Tennessee Supreme Court |
Appeal from the Criminal Court for Knox County; No. 71670; Richard R. Baumgartner, Judge.
Judgments of the Criminal Court Affirmed as Modified.
W. Thomas Dillard and Stephen Ross Johnson, Knoxville, Tennessee (at trial and on appeal); Jeanne L. Wiggins and Russell T. Greene, Knoxville, Tennessee (at trial), for the appellant, Howard Walter Thomas.
Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Randall E. Nichols, District Attorney General; and William H. Crabtree and Sally Jo Helm, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
The defendant, Howard Walter Thomas, was convicted of first degree premeditated murder; especially aggravated robbery, a Class A felony; especially aggravated kidnapping, a Class A felony; and attempted first degree murder, also a Class A felony. He was sentenced to life imprisonment for the first degree murder conviction and sentenced as a Range I, standard offender to twenty-two years for the especially aggravated robbery conviction, twenty-two years for the especially aggravated kidnapping conviction, and twenty-five years for the attempted first degree murder conviction, with the twenty-two-year sentences to be served concurrently and the twenty-five-year sentence to be served consecutively, for an effective sentence of life plus twenty-five years. On appeal, the defendant raises the following claims: (1) the circumstances surrounding his identification by one of the victims amounted to prejudicial error; (2) the trial court erred by allowing the State to exercise a peremptory challenge based on the juror's learning disability, by utilizing the pattern jury instructions on the element of deliberation, by proceeding with a death-qualified jury after the State withdrew its intent to seek the death penalty post-trial, and by failing to provide any weight to the mitigating factor of childhood/family background in sentencing for the attempted first degree murder conviction; (3) the evidence was insufficient to support a verdict of guilt with respect to the element of deliberation; (4) the death penalty is unconstitutional under the Tennessee and United States Constitutions; and (5) that cumulative error denied the defendant a fair trial. Following our review, we affirm the convictions but, in light of the subsequent decision of the United States Supreme Court in Blakely v. Washington, 542 U.S. ___, 123 S. Ct. 2531 (2004), reduce the sentences for attempted first degree murder, especially aggravated robbery, and especially aggravated kidnapping to twenty-one years, eighteen years, and eighteen years, respectively. We affirm the consecutive sentencing of the defendant.
Because of the complexity of this matter, we first will give an overview of the facts. While passing through Knoxville on the morning of March 23, 1991, on their way to vacation in North Carolina, John and Yvonne Cook of Wausau, Wisconsin, exited Interstate 275 to check their map for directions. While they were stopped on the entrance ramp, an assailant shot into their van, driven by Mr. Cook, who was struck twice. The shooter, later identified as the defendant, then got into the van with them and drove to a rural area of Knox County. After demanding money from Mrs. Cook, the defendant dumped Mr. Cook's body on the side of the road and ordered Mrs. Cook out of the van. He forced her onto the ground and attempted to shoot her but had trouble reloading his weapon. A passing motorist startled the defendant, who fled the scene in the victims' van. By that time, Mr. Cook had died. The defendant was arrested nine years later; and the trial, which is the basis for this appeal, followed.
Testifying as the State's first witness at trial, Mrs. Cook said that she was asleep in a make-shift bedroll behind the front captain's chairs in the van on the morning of March 23, 1991, and awoke when her husband pulled off the interstate in Knoxville and onto a ramp. It was raining heavily. As he turned the map light on and reached to get the atlas from the dashboard, he said, "Oh, my God." She then heard an explosion, followed by another "pop," as he slumped over in the seat toward her. She knew that he was injured "because there was a lot of blood . . . coming from mostly behind his left ear." At this time, Mrs. Cook was "sitting pretty much between the two front captain seats" on the floor. The defendant began smashing out the driver's side window, trying to get into the van, saying, "[H]ow the fuck do you get this power lock — this lock open?" He then opened the door and began pushing Mr. Cook out of the driver's seat. Mrs. Cook unlatched her husband's seatbelt, and the defendant pushed him into her arms. She got a "[f]ull facial view" of the defendant as he got into the driver's seat because the map light was on and all of the dome lights in the van came on when he opened the door. She also noticed he was carrying a gun, which he laid across his lap with the barrel pointing at her head. Mrs. Cook testified that, at this point, the defendant was sitting "[j]ust inches" from her, and she could have touched him if she had wanted to.
The defendant then drove back onto the interstate, headed north, the direction from which the Cooks had just traveled. She applied pressure to her husband's neck "in hopes that [she] could do something to save his life," and begged the defendant to release them so she could get medical help for her husband. The defendant refused, saying, They continued on the interstate for approximately fifteen to twenty minutes at a "[v]ery high rate of speed." Mrs. Cook said that after "maybe 10 minutes," her husband's heart stopped beating. When she again begged the defendant for medical help for Mr. Cook, the defendant said, The defendant then exited the interstate and drove to a rural, two-lane road where he "would kind of speed up and then he would go real slow, and I thought, `Well, he's looking for a place to stop and kill me and dump us out.'" By that time, Mrs. Cook had realized that her husband was dead. The defendant pulled over to the right side of the road and demanded money from her, stating, "[I]t better be more than a hundred dollars." She reached into her purse, pulled out her husband's wallet, and gave the defendant the cash from the wallet. The cash was in "many denominations of tens and twenties" and totaled somewhere between "five hundred, eight hundred, perhaps even a thousand dollars." Mrs. Cook said that, as she handed the money to the defendant, she was "covered with blood" and her husband's blood was all over her hands.
The defendant then told Mrs. Cook, "Get the fuck out of here and get him out of here." She opened the passenger side sliding door and attempted to pull her husband's body out of the van but was unable to do so. The defendant then exited the van, came around behind it, and "dumped" Mr. Cook's body out onto the ground. Asked how close she was to the defendant, Mrs. Cook replied, "Oh, I stood up right next to him." She said that the defendant was shorter than she. He ordered Mrs. Cook not to look at him and to get down on her hands and knees beside her husband. He then pointed the gun at Mrs. Cook's head as he attempted to load it, but he had trouble doing so because he was wearing "black leather-type gloves." Several of the bullets fell on the ground beside Mrs. Cook. Still on the ground, Mrs. Cook continued to beg for her life, saying, The defendant responded, Mrs. Cook said a white car then came down the road, shining its lights onto her, which caused the defendant to flee in the van.
Law enforcement officers arrived soon thereafter, and Mrs. Cook tried to recount what had happened and the route they had traveled. She also rode with officers in an effort to retrace their route. They subsequently returned to the scene, where she met Detective Charlie Bundren of the Knoxville Police Department ("KPD"). Mrs. Cook then went to the police station and gave a detailed description of the assailant, including that he was very young, had no facial hair, and had been wearing a dark-colored jacket and a camouflage scarf around his head "that was clear down onto his eyebrows and tied behind his head." Later in the day, the van was located.
Mrs. Cook testified that, shortly after returning home, she began seeing a psychiatrist, Dr. Sheila Stanton. At her suggestion, Mrs. Cook agreed to undergo hypnosis and began meeting with Dale Sternberg, a clinical social worker, who explained to her that the sessions would be a "form of relaxation and concentration."1 Mrs. Cook said that the reason she wanted to do this was to "help do something to solve the case." Asked about the hypnosis, she explained that she was in a state of "deep concentration and relaxation," always aware of her surroundings, and during these sessions, her image of the assailant never changed.
Subsequently, she met with a police sketch artist from the Wausau Police Department who prepared a composite of the assailant, which Mrs. Cook rated a "seven" on a scale of one to ten. She "believed it was the best that we could do" but that it did not "look exactly like the person." During the year following the incident, Mrs. Cook viewed photographic and video lineups from the KPD in a cooperative...
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